99 Problems? Copyright ain’t one

Users of applications which act as a first point of call for those seeking a new property have grown exponentially in number in South East Asia, within a relatively short space of time. It is perhaps no surprise, then, that the case of PropertyGuru Pte Ltd v 99 Pte Ltd [2018] SGHC 52 before the Singapore High Court (“the Court”) attracted significant public attention. PropertyGuru Pte Ltd (“the plaintiff”) and 99 Pte Ltd (“the defendant”) are both purveyors of popular online property portals in Singapore. The plaintiff brought claims against the defendant for copyright infringement, as well as breach of contract and inducement of breach of contract. This article examines the copyright issues at hand.

The plaintiff’s website was in its eighth year of operation by 2015, when the defendant set up their website in the same market. When the defendant’s site was in its infancy, the defendant ‘scraped’ listings from the plaintiff’s website, which gave cause for the plaintiff to take legal action in asking the defendant to cease doing so. The parties eventually signed a settlement agreement in September 2015, where one of the stipulations was that the defendant cease from reproducing the plaintiff’s material on their own site.

The copyright issues addressed in this case first came about when the defendant, in collaboration with a third-party company, developed an application which property agents and sellers could utilise to display their listings on multiple online property platforms, including that of the plaintiff and the defendant, in order to advertise their premises for sale or rent.

During the course of the app having been made available to the public in Singapore for download, photographs included within property listings which were originally on the plaintiff’s website were reproduced on the defendant’s site. These photographs were originally taken by independent sellers and agents, but bore the watermark “PropertyGuru.com.sg” having been uploaded to the plaintiff’s site and edited by the plaintiff. The plaintiff claimed that, in jointly developing the third-party app which facilitated the material’s reproduction, the defendant had infringed the plaintiff’s copyright in these watermarked photographs.

As per the Singapore Copyright Act, photographs fall within the section 7 definition of “artistic works” within which copyright subsists. Copyright within original artistic works includes the right to reproduce them in a material form as per section 26 (1) (b) (i), and it is the author of the work who is entitled to this copyright as per section 30 (2). As per section 31, a party who is not the owner or a licensee of the copyright infringes the copyright by doing any act comprised within the copyright – including reproduction. Finally, section 119 (1) enables copyright owners to sue for copyright infringement.

The plaintiff did not dispute that the original photographs were the copyright of the agents and sellers who had taken them. However, they claimed that – having enhanced the photographs by resizing them, altering the lighting, softening the edges and placing their watermark upon the photos, they had created original artistic works – of which they were the author and owner.

To examine whether this originality and ownership could be established, the Court gave an analysis as to when copyright may subsist in works which are derived from other original works. Primarily cited was the renowned Privy Council case of Interlego AG v Tyco Industries Inc [1989] AC 217 – specifically, Lord Oliver’s judgment that copying in and of itself cannot create a new original work; to create a new original work derived from a previous work requires ‘an element of material alteration or embellishment’ to have taken place. Moreover, the Judge noted that Singapore courts have tended to follow this Interlego principle – most notably in the case of Virtual Map (Singapore) Pte Ltd v Suncool International Pte Ltd [2005] 2 SLR(R) 157.

In her summation, the Judge held that the plaintiff’s enhancements to the original photographs could not be classed as a ‘material alteration’ sufficient to satisfy the standard that had been set out in Interlego and Virtual Map. In comparing the original photographs furnished and those that had been altered by the plaintiff, the Judge found little discernible difference aside from the size and the addition of a watermark. She followed the English High Court case of The Reject Shop Plc v Robert Manners [1995] FSR 870, in which resizing another work was found to be insufficient as to create an original work in which copyright may subsist.

Furthermore, the Judge held that the addition of a watermark does not in and of itself make an altered image an original work. Although skill, labour and judgement are involved in the addition of a watermark, this is not done with the intention of making a difference to the artistic nature of the work – and cannot, therefore, be said to constitute a material alteration.

Since the judge found that copyright did not subsist in the photographs in question, the plaintiff PropertyGuru’s claim for copyright infringement was dismissed on the grounds that it could not be held as the copyright owner in the first place.